Monday, June 03, 2013

There goes my summer: Lanham Act standing case gets cert

The Supreme Court today granted cert in Lexmark International Inc. v. Static Control Components Inc., U.S., No. 12-873, to address the standing test under 43(a)(1)(B).  Here's the cert petitionI have some opinions about this.

Whether the appropriate analytic framework for determining a party’s standing to maintain an action for false advertising under the Lanham Act is (1) the factors set forth in Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 537-45 (1983), as adopted by the Third, Fifth, Eighth, and Eleventh Circuits; (2) the categorical test, permitting suits only by an actual competitor, employed by the Seventh, Ninth, and Tenth Circuits; or (3) a version of the more expansive “reasonable interest” test, either as applied by the Sixth Circuit in this case or as applied by the Second Circuit in prior cases.
As now-Justice Alito was responsible for Conte Bros., I suspect his vote is already ascertainable.

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